“If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations… Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the ‘spirit behind the Resolution’ of which Nehru spoke so passionately.”

Today, in Koushal v Naz, the Supreme Court decides that the above paragraph is constitutionally untenable. It holds that S. 377, IPC is constitutional, and that homosexuality is a criminal offence in India. In so doing, it overturns a closely-reasoned Delhi High Court judgment from 2009, which the state did not even appeal. The Supreme Court tells us that our Constitution, whose Preamble proclaims a commitment to equality and justice for all, whose Bill of Rights has three specific Articles dedicated to equality and non-discrimination, nonetheless relegates Indians to second-class citizenship on the basis of their sexual orientation. And in so doing, it flies in the face of international law, the dicta of respected human rights instruments such as the ICCPR and the Universal Declaration of Human Rights, and puts India in the company of countries such as Somalia, South Sudan, Yemen and Saudi Arabia. It also upholds a law that was passed by a British colonial legislator seeking to enforce Victorian-era morality upon a subject population that had no say in it. And it perversely tells a minority to take the case for protecting its rights to the most majoritarian institution of government, the Parliament.

All of which might be justifiable if it was even remotely supported by constitutional reasons. It is not. The result is a travesty, and the reasoning is farcical. Before getting into that, however, it’s important to clear up a fundamental point: this judgment is likely to be presented—and discussed—as an issue of judicial restraint and separation of powers, because it holds the matter ought to be decided by Parliament. That, however, is a smokescreen for the real issue: does the Constitution—in particular, Articles 14, 15 and 21—prohibit discrimination on the basis of sexual orientation? If the Constitution does do so, then S. 377 is unconstitutional, and there is no question of judicial restraint, and no space for arguments that the legislative forum is the appropriate sphere for this. Article 13(2) of the Constitution could not make this clearer:

“The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”

For example, if the Parliament made a law today that banned all newspapers from reporting on political issues, no Court would ever hold that that was “a matter for Parliament to decide.” They would strike it down for violating a Constitutional right—Article 19(1)(a). The basic issue, therefore, is about the existence of a constitutional right that protects homosexuals from discriminatory legislation. To frame this as an issue of “restraint”, and argue that the Court was operating on the principle of judicial restraint is deeply misleading.

The right at issue can be found in at least three articles.

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” (Article 14)

“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” (Article 15)

“No person shall be deprived of his life or personal liberty except according to procedure established by law.” (Article 21)

Let us briefly recall the reasons that the Delhi High Court had given in its judgment. Article 14 permits class legislation only if there is an intelligible differentia between the classes, a rational nexus with the objective of the legislation, and the constitutional validity of the objective itself. The State’s reasons for retaining the law were health—it would prevent the spread of AIDS—and enforcing public morality. The Delhi High Court found on fact that there was no connection between homosexuality and public health (in fact, quite the opposite), and it held that the only morality that the State was permitted to enforce was found within the four corners of the Constitution - Constitutional morality, derived from the text, the structure and the philosophy of the Constitution itself. On Article 15, the Court held that “sexual orientation” was a protected category, contained within the term “sex“. And on Article 21, the Court held that the right to privacy—incontestably an aspect of personal liberty, as upheld by a string of decisions—could only be restricted by showing a compelling state interest. Here, the State had shown none.

What does the Supreme Court say about this? The answer is, very little. The core of the reasoning of the Court is found in paragraphs 42 and 43:

“Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty. Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution

While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.”

Pause for a moment and take this in. First, the Court says—without an iota of evidence—that there are two classes of persons—those who engage in sexual intercourse in the “ordinary course”, and those who don’t. What is ordinary course? Presumably, heterosexuality. Why is this ordinary course? Perhaps because there are more heterosexuals than homosexuals around, although the Court gives no evidence for that. Well, there are also more black-haired people in India than brown-haired people. Is sex with a brown-haired person against the order of nature because it happens less often? But forget that. Where is the rational nexus? What is the legitimate governmental objective? Even if we accept that there is an intelligible differentia here, on what basis do you criminalize—and thus deny equal protection of laws—to one class of persons? The Court gives no answer. Alternatively, “ordinary sex” is penal-vaginal, and every other kind of sex is “against the ordinary course of nature”. Again, no evidence to back that claim up apart from the say-so of the judge. There is only one possible justification, which the Learned Judge briefly cites before—that in defining an offense, the Court is not indulging in class legislation at all, but only in prohibiting action (presumably to get around Article 15), but here he has already rejected that argument by admitting that there is class involved. And if there is class involved, then the government needs to show rational nexus and legitimate objective!

The Court then makes a truly bizarre observation, holding that because only 200 people have been prosecuted, there is no discrimination. Two hundred people. Suppose the State randomly catches hold of 200 people and shoots them dead. This, according to the learned Judge, would not be an Article 21 violation because, well, it’s just 200 people. Our Constitution does value human life—but only when it’s more than 200 people. Remember that.

Notable is the Court’s blanket refusal to consider Article 15. If there is class involved—and the Court admits there is—and if homosexuals necessarily engage in sexual intercourse against the order of nature—then by criminalizing that act, there is discrimination on the basis of sexual orientation. The question is whether that attracts Article 15. Article 15 prohibits discrimination on a number of grounds: religion, race, caste, sex and place of birth. With the possible and partial exception of religion, what unites these features is that they are all essential aspects of any individual’s private and public identity (by public personality, I mean a series of labels used by the society to identify her and differentiate her from others) that she is born into and is powerless to choose or change. To this we can add Article 16(2) (prohibition of discrimination in employment on similar categories); Article 17 (prohibition of untouchability—discrimination on the basis of birth); and Article 18 (abolition of titles—advantages (a form of discrimination), normally on the basis of birth). Let us—summarily—call this the “non-disrcimination principle”.

Now let us consider Articles 19 and 25. Article 19 guarantees the freedom of speech and expression, assembly, association, movement, residence and profession; each of these freedoms, it can hardly be disputed, are fundamental for two reasons: first, they are essential expressions of individual (and, for that matter, communitarian) personality; in the words of Justice Kennedy in Planned Parenthood v Casey:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life…. people have organized intimate relationships and made choices that define their views of themselves and their places in society.”

Secondly, as Dworkin puts it, these freedoms ensure that every citizen of the polity is provided the opportunity to contribute towards shaping the moral, cultural and political environment that she finds herself in—and that that, in turn, is the very essence of government according equal respect and concern to all its citizens. To this we add Article 25, that guarantees the freedom of conscience and religion (and further, the entire scheme from Articles 26 to 30); and indeed, arguable the two most important freedoms within this set (speech and conscience) are not limited by public interest concerns. Let us summarily call this the “autonomy principle”.

We are now in a position to understand why not only the Delhi High Court’s reading of “sexual orientation” into “sex” was not only correct, but the only possible correct decision. Our Constitution is structurally committed to a two-pronged principled attitude towards individuals: freedom in those matters that are related to the most fundamental expression of one’s humanity and personality (autonomy principle); and no discrimination on the basis of aspects of private and public identity that a person is born with and into (non-discrimination principle). And these principles stem not from any one provision, but a combination of Articles 14, 15, 16, 17, 18, 19, 25 and 26 to 30.

Can anyone seriously deny that sexuality is integrally—and centrally—consistent with both these principles? Constitutionally, therefore, there is no warrant for the Supreme Court to interfere with the judgment of the Delhi High Court; a contrary opinion would imply that our Constitution is committed to the non-discrimination and respect principles (as discussed above)—but in an entirely insupportable, capricious, arbitrary and unprincipled fashion, withholds that commitment from homosexuals. That certainly cannot be the Constitution we live under, or the Constitution to which we owe our allegiance.

And lastly, Article 21 and the right to privacy, expressly upheld in Gobind to include family life, and in Kharak Singh to require a compelling State interest in case of interference. Search in the judgment for an analysis of Article 21. You will find none. This is not just bad constitutional law. This is no constitutional law.

The Court tells us today that our Constitution guarantees all citizens the equal protection of laws—but withholds that protection from homosexuals. The Court tells us today that our Constitution prohibits discrimination if you’re born a certain gender, or a certain caste, or a certain religion—but not if you possess a certain sexual orientation. The Court tells us today that we all have a right to privacy in our personal lives—but not in our choice of whom to love. Is there any conceivable constitutional principle that justifies this, the unbearable wrongness of Koushal v Naz Foundation?

Every once in a way, the highest Court in the land delivers a judgment that is both constitutionally preposterous, and morally egregious. Dred Scott v Sanford, where the American Supreme Court held that Blacks could never be citizens of the United States is a famous example. Plessey v Ferguson, where it held that segregated schools were constitutional, is another. In our own jurisdiction, Habeas Corpus, holding that fundamental rights—including the right to life—were inoperative during an Emergency, is a third. Yet we have seen that the arc of constitutional history has bent towards justice and equal citizenship; Dred Scott, Plessey and Habeas Corpus stand out as moments of deep national shame, blots on the judicial record, examples par excellence of judges at their very worst. And they have all been overruled. We can only hope that soon enough—whether by way of review or legislative action— Kaushal v Naz will join them upon the rubbish-heap of constitutional history.

Gautam Bhatia is a graduate of the National Law School of India University (2011), and presently an LLM student at the Yale Law School. This first appeared on the blog Indian Constitutional Law and Philosophy.

The Supreme Court rules "Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable" thus once again criminalising Gay sex